There is a commonly held misconception that the costs of a will challenge are automatically paid from the estate. Whilst this sometimes does happen, it is the exception rather than the rule.

In terms of funding a contentious probate claim, each party will be responsible for paying their own costs from the outset. At the end of the case, the court will decide whether any adverse costs orders will be made i.e. whether there should be any costs recovery. The general position regarding recovery of costs in all litigation cases (including probate disputes, will disputes and inheritance disputes) is that “costs follow the event”. This means that at the end of the case, the losing party will be ordered to pay the winning party’s costs.

In contentious probate cases, there are only a few occasions when an exception will be made to the “costs follow the event” rule. The main exceptions were set out in the case of Spiers v English (1907) and are as follows:

“In deciding questions of costs one has to go back to the principles which govern cases of this kind. One of those principles is that if a person who makes a will or persons who are interested in the residue have been really the cause of the litigation a case is made out for costs to come out of the estate. Another principle is that, if the circumstances lead reasonably to an investigation of the matter, then the costs may be left to be borne by those who have incurred them.”

One of the most well-known cases where the courts have applied the exceptions is Kostic v Chapman (2007). This case involved a challenge to a will by the Deceased’s son on the grounds of testamentary capacity.

The Deceased cut his son out of his will and left his estate to the Conservative Party. The conduct of the Deceased during his lifetime (and the unusual wording of his latest will) cast doubt as to whether the Deceased had capacity to make the will. The Deceased suffered from a delusional disorder and he had stated that “dark forces” were carrying out a “sinister and highly organised international conspiracy” against him. He believed that his son was part of that conspiracy. Part of the Deceased’s delusions meant that he believed that the Conservative Party, would be able to save the country from such “dark forces”. The court decided that the Deceased’s delusions had caused him to cut his son out of his will. Accordingly, he lacked testamentary capacity and the earlier will in favor of his son was upheld.

When the court turned to consider the costs, it was held that it was perfectly reasonable for the Conservative Party to investigate the Deceased’s capacity in these circumstances and accordingly ordered that the Conservative Party would receive its costs from the estate up to the stage where a realistic assessment of the merits of the claim could first properly be made (i.e. up until the point that expert’s reports were exchanged). After the expert’s reports were exchanged, the court took the view that the Conservative Party allowed the case to continue to trial and this was a “commercial risk” on their part.

The court held that from the point that the expert’s reports were exchanged, the usual cost rule would apply and ordered that the Conservative Party pay the son’s legal costs from then until to the conclusion of the case at trial.

The costs of challenging a will should be considered carefully before litigation is commenced. Often, costs will need to be paid for privately by litigants out of their own pocket. On some occasions, funding by way of a “no win no fee” can be offered. If you would like to discuss challenging a will and would like advice on your funding options and more information about “no win no fee” for a will dispute, please contact our contentious probate lawyers on 01902 424927 for an initial free consultation. We can often act for clients in relation to will disputes and probate disputes on a “no win no fee” basis.